News Articles

RETROACTIVE CLAIMS FOR CHILD SUPPORT

ACCORDING TO THE SUPREME COURT OF CANADA

This article is a follow up to the article written by Danielle Elder of our firm last year following the Alberta Court of Appeal decisions in the trilogy of arrears cases now that the Supreme Court of Canada has rendered its decision on those cases.

The decision of the Supreme Court of Canada was issued July 31, 2006. It is 67 pages in length and this article is an extremely brief review of that decision. Should you have a retroactive claim or be faced with one, you should speak to your family law lawyer about its full ramifications upon your case.

The Supreme Court confirmed the following principles behind child support:

1. That child support is the right of the child, not the parents;
2. That it is the responsibility of both parents to ensure a proper level of child support is being paid; and
3. That child support should try to provide children with the same standard of living that they enjoyed prior to the parties separation.

The Court did not believe that generally, retroactive support issues should not be decided differently whether there is an order, agreement or nothing in place between the parties. It also stressed that each case will have to be decided upon its own facts.

The Court provided a number of factors that should be looked to in determining whether a retroactive child support award is warranted. These factors include:

1. Is there a reasonable excuse by the recipient spouse for any delay in bringing the issue of child support before the courts
   
   The Court will look to whether the recipient spouse had justifiable fears of vindictive or other inappropriate behaviour from the payor spouse had they raised the issue of a review of the child support payments or whether the recipient spouse had the financial or emotional resources to pursue a review of the child support earlier.
    
2. Is there any blameworthy conduct on behalf of the payor
   
   The Court defines blameworthy conduct as anything that privileges the payors own interests over the child s right to appropriate support. If there is blameworthy conduct, then the Court will be more likely to grant a retroactive award.
    
3. What are the circumstances of the child?
   
   Court recognizes that any retroactive award is a poor substitute for an unfulfilled support obligation, but it will investigate whether the child s standard of living was adversely affected as a result of inappropriate levels of support being paid.
    
4. Will there be hardship if retroactive support were ordered?
   
   Court will try to craft any award to minimize hardship upon a payor spouse if an award is made. This may be a reduction in the amount that should be paid, or a flexible repayment schedule and so on. There will be less of a concern over hardship if the Court finds any blameworthy conduct on the part of the payor.

Assuming the Court determines that a retroactive award is appropriate, then the court needs to determine from what date the award should be made and in what amount.

In regards to the date that the retroactive award should be made to, the Supreme Court has suggested that it should only go back to the date that effective notice of a desire to review child support is given by the recipient spouse. This is not necessarily the same date as when a party first raises the issue through a lawyer or the courts, but rather, when the topic of child support is first broached between the parents. The Court does suggest that it may be inappropriate to award a retroactive support for a period larger than three years back from the date that the matter is finally dealt with by the Court. However, this limitation is not absolute, as each case must be decided on its own facts.

In regards to the amount, the Court believed it to be appropriate that the level of child support that should have been paid (had a review occurred in a timely fashion) less what had been paid would be the appropriate amount, unless the same would result in significant hardship to the payor.

By Jim Glass
August 23, 2006